Wentz v. State, 82S00-9804-CR-238.

• Docket Nº: No. 82S00-9804-CR-238.
• Citation: 766 N.E.2d 351
• Case Date: April 15, 2002
• Court: Supreme Court of Indiana

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Jason WENTZ, Appellant (Defendant/Petitioner Below),
v.
STATE of Indiana, Appellee (Plaintiff/Respondent Below)

No. 82S00-9804-CR-238.

Supreme Court of Indiana.

April 15, 2002.

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I. Marshall Pinkus, Indianapolis, IN, Attorney for Appellant

Steve Carter, Attorney General of Indiana, Timothy W. Beam, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

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ON DIRECT APPEAL AND ON PETITION FOR POSTCONVICTION RELIEF

BOEHM, Justice.

Jason Wentz was convicted of felony murder, kidnapping, burglary, robbery, residential entry, and two counts of auto theft and sentenced to seventy-nine and one-half years imprisonment. He raises six issues for review, which we restate as five. He contends: (1) the trial court erred by telling the jury its understanding of the case at the beginning of jury selection; (2) the trial court erred by denying his motion for a change of venue; (3) the trial court erred by overruling his motion to exclude certain evidence; (4) the trial court erred by imposing consecutive sentences; and (5) his trial counsel was ineffective. We affirm the judgment of the trial court and the denial of postconviction relief in all respects except for Wentz's sentencing. We vacate Wentz's sentence for kidnapping and remand with instructions to impose concurrent sentences on all remaining counts.

Factual and Procedural Background

At about 3 a.m. on July 26, 1996, Jason Wentz and Joseph Henson abducted Donna Heseman as she walked through the parking lot of the Bristol Myers facility in Evansville where she worked. Henson forced Heseman into her car with a shotgun while Wentz waited in the car the pair had driven from Paris, Illinois. At Henson's order, Heseman began driving her car with Wentz following when Henson shot Heseman and caused the car to crash through an entrance gate at the facility. Henson abandoned Heseman's car, jumped in with Wentz, and the two sped away.

The pair quickly abandoned their car and soon came upon Nelson Reynolds' trailer, where Stacy Durham and Chris Freeman were sleeping. Henson and Wentz entered, demanded the keys to Reynolds' truck, and left in that vehicle. Later that morning, the two unsuccessfully attempted to gain entry to the residence of Kathryn Kuester, but managed to steal

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Gregory Epley's car from in front of his home. That car was later found abandoned in a bean field. Eventually the pair broke into the empty residence of Orville Childers. When Childers arrived home, the intruders demanded the keys to his truck and sped off again. The two were finally apprehended when they crashed Childers' truck into a sheriff's car

Police recovered evidence from Childers' residence and from the various vehicles Henson and Wentz had occupied that day. Included among these items were the shotgun used to kill Heseman, a sock cap containing hair, several gloves, a police scanner, shotgun shells, camouflage sandals, gloves, and a black BB gun in a duffel bag. Henson was sentenced to a total of 100 years in a trial that preceded Wentz's. See Henson v. State, 707 N.E.2d 792 (Ind. 1999).

Wentz's trial resulted in convictions of felony murder, kidnapping as a Class A felony, burglary as a Class B felony, robbery as a Class B felony, residential entry as a Class D felony, and two counts of auto theft as Class D felonies. The trial court sentenced him to seventy-nine and one-half years imprisonment. Pursuant to Davis v. State, 267 Ind. 152, 368 N.E.2d 1149 (1977), this Court stayed his direct appeal pending a hearing on postconviction relief. In this opinion, we address the issues Wentz raises on direct appeal, as well as his appeal of the denial of his petition for postconviction relief.

I. Trial Court's Comments to Jury

Wentz contends the trial court erred when it told the jury venire its understanding of the case at the onset of voir dire. In the course of addressing the prospective jurors, the trial court made the following statement:

The theory of the case—at least my understanding of the theory of the case is that the State has alleged that Mr. Wentz was present at the night of the alleged homicide and participated in the abduction of the victim and the taking of the car. I do not believe the State is alleging that Mr. Wentz pulled the trigger here. But what they're saying is that he participated in it. And what that is called is Felony Murder. Okay? If someone is participating in a felony and a murder results, then the State can actually charge a murder. All right? Now, what Mr. Wentz is saying is that he was present at the scene but he didn't know any of this was going to happen. Okay? So, that's basically the framework of the case. And, as jurors, it would be your job then to determine what the participation of Mr. Wentz was in this case and your job to determine whether or not the State of Indiana has proved its theory beyond a reasonable doubt before you can vote for conviction.

Wentz contends that this discourse was the equivalent of the trial judge's taking the stand as a witness, placing Wentz at the scene of the murder, and telling the venire that Wentz participated in the crime. Wentz claims the trial court's action denied him his right to confront witnesses under the Sixth Amendment to the United States Constitution¹ and Article I, Section 13 of the Indiana Constitution.² Wentz also argues that the trial court's statement forced him to testify and explain his presence at the murder scene, which violated the protection against self-incrimination afforded by the Fifth Amendment to the

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United States Constitution.³ Although Wentz did not object to the trial court's statement, he contends the trial court committed fundamental error reviewable without the need to preserve the error. For the fundamental error doctrine to apply, however, we must find the alleged error so prejudiced the defendant's rights as to make a fair trial impossible. Corcoran v. State, 739 N.E.2d 649, 655 (Ind.2000).

We agree with the general proposition Wentz puts forth: trial judges should refrain from commenting on what they believe the defendant will or will not argue at trial. Although a trial judge has "broad discretionary power to regulate the form and substance of voir dire," he or she also has "a concurrent duty to remain impartial and to refrain from making unnecessary comments or remarks." Williams v. State, 555 N.E.2d 133, 137 (Ind.1990). Trial judges should exercise care to avoid an indirect expression of their opinion to the jury. Jurors' respect for the judge can lead them to accord undue significance to their reading of the judge's intimations, whether or not any are intended. Kennedy v. State, 258 Ind. 211, 226, 280 N.E.2d 611, 620-21 (1972). The judge's anticipation of the defense strategy is also a concern because the trial strategy of a criminal defendant may change at a moment's notice. We understand the trial court's reference to "what the defendant is saying" as predicting trial counsel's argument, not the defendant's testimony. Nevertheless, neither the decision to testify nor the defense's contentions should be influenced or painted into a corner by the court's predictions.

Although we agree with these points Wentz raises, we do not agree that the judge's comments require reversal here. At trial, Wentz argued that, although he was at the scene of the murder, Henson's actions took him by surprise. Further, although Wentz stated at his postconviction relief hearing that he felt compelled to testify, it was because of his attorney's advice that it was his only defense, not because of any action of the trial judge. Although the trial court's comments were unnecessary, they ultimately were essentially accurate, and there is no indication that they so prejudiced Wentz's rights as to make a fair trial impossible. There was no fundamental error; therefore, Wentz's claim as to this issue fails.

II. Change of Venue

The tremendous amount of pre-trial publicity—due in large part to Henson's earlier trial—led to Wentz's motion for change of venue from Vanderburgh County on August 7, 1996. Three hearings were held on the motion, with the final one taking place on September 7, 1997. At the conclusion of the hearings, the trial court denied Wentz's motion, but asked the parties to strike from a list of three other counties to select an alternate venue if a panel from Vanderburgh County could not be seated. Wentz concedes, however, that his trial counsel did not respond to the judge's request. Although such a failure is grounds for waiver, cf. McDaniel v. State, 268 Ind. 380, 382, 375 N.E.2d 228, 230 (1978), Wentz claims the trial court should have ordered a change of venue sua sponte because of the saturation media coverage. We address this issue primarily because it is recast in Part V as an ineffective assistance of counsel claim.

This Court reviews a trial court's denial of a motion for a change of venue for an abuse of discretion. Specht v. State, 734 N.E.2d 239, 241 (Ind.2000). To prevail

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on this claim, Wentz must demonstrate (1) prejudicial pretrial publicity and (2) the inability of the jurors to render an impartial verdict. Id. Although Wentz demonstrated the extensive pretrial coverage of this matter in Vanderburgh County, "[t]hat potential jurors were exposed to press coverage does not satisfy this test." Id. Wentz must also prove the jurors were unable to disregard preconceived notions and render a verdict based on the evidence. Id. At the onset of voir dire, the trial court questioned the prospective jurors about their prior knowledge of the case. As far as this Court can tell, nearly every juror—if not all—responded that he or she had heard something about the case. However, the trial court went to great lengths to question the prospective jurors, and excused those who, in its judgment, could not render an impartial verdict. Further,...